Barger v. CDCR et al

Filing 27

ORDER signed by Magistrate Judge Kendall J. Newman on 4/23/15 DISMISSING 19 First Amended Complaint. Plaintiff is GRANTED 30 days from the date of service of this order to file an amended complaint; Plaintiff's 16 Request for appointment of counsel is DENIED without prejudice. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY DALE BARGER,

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Plaintiff,

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No. 2:15-cv-0072 GEB KJN P

v.

ORDER

CDCR, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.

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§ 1983, and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This

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proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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I. Motion for Leave to Proceed In Forma Pauperis
Review of court records1 reveals that plaintiff is designated a “three strikes litigant” under

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28 U.S.C. § 1915(g), which provides:

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In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding under this section if the prisoner has,
on 3 or more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the United States
that was dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.

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Judicial notice may be taken of court records. Valerio v. Boise Cascade Corp., 80 F.R.D. 626,
635 n.1 (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9th Cir. 1981).
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Such a designation indicates that plaintiff has brought three or more prior actions that were

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dismissed as frivolous, malicious, or for failure to state a claim, and precludes plaintiff from

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proceeding in forma pauperis in the present action unless he demonstrates that he was under

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imminent danger of serious physical injury when he filed the complaint.

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The undersigned notes that plaintiff has been denied in forma pauperis status due to his

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three-strikes designation in at least six prior cases,2 which together cite several cases in which

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plaintiff’s complaints were dismissed as frivolous, malicious, or for failure to state a claim. This

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court has reviewed the basis of the findings in those cases and concurs that plaintiff has suffered

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at least three prior strike dismissals as defined by 28 U.S.C. § 1915(g).3

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As a three strikes litigant, plaintiff may not proceed in forma pauperis in the present action

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unless he demonstrates that he was “under imminent danger of serious physical injury” when he

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filed his complaint. 28 U.S.C. § 1915(g). The imminent danger exception applies only if it is

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clear that the danger existed when the complaint was filed. Andrews v. Cervantes, 493 F.3d

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1047, 1053 (9th Cir. 2007). The danger must be real and proximate, Ciarpaglini v. Saini, 352

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F.3d 328, 330 (7th Cir. 2003), and must be ongoing, Andrews, 493 F.3d at 1056. Allegations of

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See Fisher v. Director of OPS of CDCR, No. 2:14-cv-1323 EFB TLN P (E.D. Cal., Aug. 5,
2014) (ECF No. 17); Barger v. Kern County Superior Court et al., No. 1:14-cv-01071 DLB P
(E.D. Cal., Aug. 13, 2014) (ECF No. 12); Barger v. Kern County Superior Court et al., No. 1:14cv-01667 LJO SAB P (E.D. Cal., Oct. 29, 2014) (ECF No. 11); Barger v. Kern County Superior
Court et al., No. 1:14-cv-01628 LJO DLB P (E.D. Cal., Nov. 5, 2014) (ECF No. 10); Barger v.
Director of OPS of CDCR, No. 2:14-cv-2525 KJN P (E.D. Cal., Nov. 12, 2014) (ECF No. 11);
Barger v. CDCR, No. 2:14-cv-2311 TLN DAD P (E.D. Cal. Dec. 3, 2014) (ECF No. 10). The
court also takes judicial notice of the National Pro Se Three-Strikes Database, which designates
plaintiff a three-strikes litigant based on the above-noted order and findings in Fisher v. Director
of OPS, No. 2:14-cv-1323 EFB TLN P (E.D. Cal., Aug. 5, 2014) (ECF No. 17). See
http://nprose.circ9.dcn/Litigant.aspx.
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The undersigned takes judicial notice of the following cases which count as strikes against
plaintiff under § 1915(g): (1) Fisher v. FBI, Case No. 1:13-cv-0414 LJO SAB P (E.D. Cal. 2013)
(dismissed on July 26, 2013, for failure to state a claim (ECF No. 19)); (2) Barger v. FBI, Case
No. 1:13-cv-0535 DLB P (E.D. Cal. 2013) (dismissed on November 21, 2013, for failure to state
a claim (ECF No. 10)); (3) Barger v. Casey et al., Case No. 2:13-cv-8889 UA MAN P (C.D. Cal.
2013) (dismissed December 20, 2103, as frivolous, malicious or fails to state a claim, and sought
relief from an immune defendant (ECF No. 6)); and (4) Fisher v. Bivens, Six Unknown Agents,
Case No. 2:14-cv-01439 UA MAN P (C.D. Cal. 2014) (dismissed on March 6, 2014, for failure to
state a claim (ECF No. 2)).
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imminent danger that are overly speculative or fanciful may be rejected. Id. at 1057 n. 11.

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Absent a showing that plaintiff was under imminent danger of serious physical injury at the time

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he filed his complaint, his only option for proceeding with this action is to pay the full filing fee.

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Plaintiff is currently incarcerated at the California Health Care Facility in Stockton. In the

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complaint now pending before the court, in the course of describing a number of events that have

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taken place since May 14, 2003, plaintiff states, “[T]hey still attempt to poison me with Zyprexa.”

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(First Amended Complaint (“FAC”), ECF No. 19 at 4.) However, plaintiff does not elaborate on

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this statement in any way in the remainder of his complaint. As discussed further below, it is

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impossible to determine whether the complaint, taken as a whole, states a claim for relief; the

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court can neither discern who the defendants are nor what they are alleged to have done, and

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whether plaintiff is truly “under imminent danger of serious physical injury.” Plaintiff does not

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specify what symptoms he is experiencing as a result of taking Zyprexa, and whether he believes

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he is being intentionally poisoned and by whom, or whether he has an allergy to Zyprexa, or

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whether he is suffering from the side effects of the medication, or whether he merely disagrees

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with his physicians as to his need for the medication. Even construing the allegation regarding

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Zyprexa liberally, see Andrews, 493 F.3d at 1055, the court cannot say, with any measure of

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certainty, that plaintiff has alleged that he was in imminent danger of serious physical injury at

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the time the FAC was filed. Accordingly, the court will defer ruling on plaintiff’s request to

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proceed in forma pauperis until such time as plaintiff files an amended complaint.

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II. Screening Requirement

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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an
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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hospital

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Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

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most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).

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The court finds the allegations in plaintiff’s FAC so vague and conclusory that it is unable

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to determine whether the current action is frivolous or fails to state a claim for relief. The court

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has determined that the FAC does not contain a short and plain statement as required by Fed. R.

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Civ. P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must

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give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community

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Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some

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degree of particularity overt acts which defendants engaged in that support plaintiff’s claim. Id.

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Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a)(2), the FAC

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must be dismissed. The court will, however, grant leave to file an amended complaint.

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If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions

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complained of have resulted in a deprivation of plaintiff’s constitutional rights. See Ellis v.

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Cassidy, 625 F.2d 227 (9th Cir. 1980). Also, the complaint must allege in specific terms how

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each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 unless there

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is some affirmative link or connection between a defendant’s actions and the claimed deprivation.

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Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980);
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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, vague and conclusory

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allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of

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Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff’s amended complaint complete. Local Rule 220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This requirement is

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because, as a general rule, an amended complaint supersedes the original complaint. See Loux v.

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Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original

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pleading no longer serves any function in the case. Therefore, in an amended complaint, as in an

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original complaint, each claim and the involvement of each defendant must be sufficiently

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alleged.

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III. Request for Appointment of Counsel

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Plaintiff requests that the court appoint counsel. District courts lack authority to require

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counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney

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to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s

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likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro

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se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970

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(9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The

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burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that warrant a request for voluntary assistance of counsel.

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As plaintiff has failed to state a claim in the FAC, the court is unable to determine

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plaintiff’s likelihood of success on the merits of his claims or the complexity of the legal issues

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involved.

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Accordingly, having considered the factors under Palmer, the court finds that plaintiff has

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failed to meet his burden of demonstrating exceptional circumstances warranting the appointment

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of counsel at this time.

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IV. Conclusion

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In light of the foregoing, IT IS HEREBY ORDERED that:

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1. Plaintiff’s First Amended Complaint (ECF No. 19) is dismissed.

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2. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

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Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number

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assigned this case and must be labeled “Second Amended Complaint”; plaintiff must file an

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original and two copies of the amended complaint; failure to file an amended complaint in

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accordance with this order will result in a recommendation that this action be dismissed.

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3. Plaintiff’s request for the appointment of counsel (ECF No. 16) is denied without

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prejudice.

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Dated: April 23, 2015

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